Publication Bans and Statutory Warnings

WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

(2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) is guilty of an offence punishable on summary conviction.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences; (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 ..

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20200604 DOCKET: C66062

Fairburn, Nordheimer and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

J.M. Appellant

Counsel: Richard Litkowski, appearing as duty counsel Hannah Freeman, for the respondent

Heard: May 29, 2020 by Teleconference

On appeal from the conviction entered on June 4, 2018 and the sentence imposed on October 1, 2018 by Justice Allan G. Letourneau of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of sexual assault and failing to comply with a youth court order. The appellant was 16 years of age at the time of the incident. His brother and the complainant were 15 years of age.

[2] The complainant and appellant testified at trial. There is no dispute that the complainant attended the appellant’s residence and whisky was consumed. Nor is there dispute that sexual activity took place or that the appellant had vaginal intercourse with the complainant while his brother placed his penis in her mouth. Nor is there dispute that the brothers traded positions a couple of times during the encounter in the basement of the appellant’s home. Nor is there dispute that, at some point after the sexual activity involving both brothers ended, the complainant and appellant were in the shower together and another act of sexual intercourse took place.

[3] The sole issue at trial was whether the complainant consented to the sexual activity. The complainant said that none of it was consented to, that she cried through much of it and told them to stop. The appellant maintains that it was all consented to.

[4] The trial judge gave lengthy reasons for judgment, which understandably focused upon questions of credibility and reliability. He explained why he rejected the appellant’s evidence about consent and why he believed the complainant on this crucial point.

[5] The appeal is predicated on three alleged errors.

[6] First, the appellant argues that the trial judge misapprehended four points of evidence. With one exception, we do not agree that the points raised are properly characterized as misapprehensions of evidence.

[7] For instance, the appellant argues that the trial judge misapprehended the evidence when he characterized a text message, sent by the appellant to the complainant, as an admission against interest. The text message read: “shouldn’t have tried it the second time but I stopped when you told me to.” We do not agree that the trial judge misapprehended the evidence about the text message. The trial judge simply drew an available inference from that evidence, considered in the context of all of the evidence, that when the appellant acknowledged that he “shouldn’t have tried it a second time”, he was acknowledging that he knew the complainant was not consenting.

[8] The appellant also takes issue with what he calls the trial judge’s speculation, when he opined that “[the complainant] may have reasonably thought that screaming for help, or telling the boys’ mother that her sons had just raped her, might endanger her further.” This was not speculation. There was evidence that the appellant had told the complainant that his mother was a “psycho”. There is no misapprehension of evidence around this point. In any event, the impugned sentence was entirely irrelevant to the result. Whether the complainant raised a hue and cry during or immediately after the assault, was irrelevant to whether she was sexually assaulted.

[9] The appellant also argues that the trial judge improperly speculated about why the appellant had sent a text message to the complainant shortly after the offence, suggesting that his brother had not been involved in the sexual activity. The appellant testified that he sent that message at a time when he could not recall his brother’s involvement in the sexual activity. According to the appellant, he only recovered that memory at a later point in time.

[10] The trial judge rejected that explanation and concluded that the text message was motivated by the appellant’s desire to “see if it would cause [the complainant] to question her own recollection of the night’s events and/or to dissuade her from contacting the police.” We see no improper speculation in this comment. It was open to the trial judge to reject the appellant’s explanation as to why he had sent the message. It was also open to the trial judge to conclude that the message was sent for the exact purpose he articulated.

[11] While we agree that the trial judge misapprehended one piece of evidence, regarding the timing of a message sent by the complainant to her mother, that misapprehension of evidence is immaterial to the verdict.

[12] Second, the appellant argues that the trial judge applied uneven scrutiny to the Crown and defence evidence. We do not agree. In our view, the trial judge engaged in a “proper individualized assessment of the different evidence offered by the different witnesses”: R. v. R.R., 2020 ONCA 327, at para. 20.

[13] One of the factors that the appellant points to as revealing uneven scrutiny of the evidence is how the trial judge dealt with the complainant’s evidence as to whether she changed into her shorts in the washroom. The appellant argues that she was inconsistent on this point and, if the trial judge had applied even scrutiny, this inconsistency would have damaged her credibility.

[14] We do not agree that this point demonstrates uneven scrutiny of the evidence. This is a repeat of the argument from trial, an argument that the trial judge specifically dealt with and disposed of. He simply concluded that there was no inconsistency in the evidence. That was a factual conclusion that the record supported and he was entitled to arrive at.

[15] Finally, the appellant raises other concerns about the trial judge’s credibility assessments. Credibility assessments are owed strong deference: R. v. R.A., 2017 ONCA 714, 421 D.L.R. (4th) 100, at para. 44. We see nothing that would cause us to interfere in those findings.

[16] The appellant maintains that the trial judge erred when he concluded that the appellant was upset after the sexual encounter because he knew that he had “raped” the complainant “and was deeply troubled regarding the prospects of her going to the police and reporting the rape.” The appellant objects to the trial judge’s conclusion on this issue. He maintains that his upset was caused by the fact that his marijuana was missing and he realized that he had just cheated on his girlfriend. That may have been his position at trial, but the trial judge acknowledged and rejected it. He was entitled to do so and we would not interfere with that finding.

[17] The appellant also argues that the complainant had a strong motive to fabricate the allegations, particularly given that she was confronted by the appellant’s girlfriend about the sexual encounter the morning after it occurred and before she had reported anything. Again, the trial judge was alive to this defence argument. He specifically addressed it. He stated the law on motive to fabricate correctly. He accepted the complainant’s evidence that she did not disclose the offence before her communications with the appellant’s girlfriend because she was still “processing how to deal with the matter”. This was a conclusion available on the record and one that is well explained in the reasons.

[18] The appeal is dismissed.

“Fairburn J.A.”

“I.V.B. Nordheimer J.A.”

“Harvison Young J.A.”